CJg' — -v-y^-C- •^ \ 



,< THE 



SUSPENDING POWER 



AND 



€\)( Writ 



OF 



HABEAS CORPUS. 







PHILADELPHIA: 
JOHN CAMPBELL, BOOKSELLER. 

419 CHESTNUT STREET. 
1862. 



C-(Kf- '^^ 



THE 



^ujipnuUng f outv and the 3iVtit d ^uhm (Uavjni^. 



The people of the United States, tliroiigli State Conventions, 
ordained that the Constitution should be the supreme law of the 
land ; and to secure the blessings of liberty to themselves and their 
posterity, by the 1st clause of the 9th section of the 1st Article, 
declared that 

" The privilege of the Writ of Habeas Corpus shall not be 
suspended, unless when, in cases of rebellion or invasion, the 
public safety may require it." 

It will be observed that this does not, nor does the Constitution 
elsewhere, grant this privilege to the people. It assumes that they 
have it. 

It prohibits the Government of the United States, and all its 
departments, under any and all circumstances, from totaWj depriving 
the people of this, their privilege ; but it does grant the power to 
suspend that privilege when, but not till, two things shall concur 
and have been determined by the competent authority, viz : 

1. A rebellion, {or an invasion,) and 

2. That the public safetT/ requires it to be then suspended. 
This clause grants, that, under these concurring conditions, that 

power may be exercised by — ivhom ? That is the inquiry. 

It is affirmed by some, that that power is granted to the Presi- 
dent, and by others that it belongs to the Congress. No one has 
thus far contended that it belongs to each of them, nor yet to the 
Judiciary. It follows that the power can be exercised only by 
the Congress or by the President. 

For the President's power it has been said : 

I. That the phrases, "privilege of the Writ," and "suspended" 
as predicated of that privilege, are expressions unknown to the 
common or to parliamentary law — and that "suspending the Habeas 
Corpus Act" is an "inaccurate expression," as the Act "was 
never for a moment suspended." That " suspending the privilege" 

(3) 



was a phrase ^\first used in the Constitution of the United States," 
hence all analogy from the English law and Constitution must be 
discarded. 

II. That a temporary denial of the privilege by a single act 
(founded on the authority of the Constitution) is all that is neces- 
sary to suspend the privilege. And as this power to deny (tem- 
porarily) a discharge "is an executive power," therefore to 
suspend the privilege is an executive power. 

III. That all the conditions of the exercise of the power (to 
suspend), that is to say, rebellion or invasion, and the requirement 
of the public safety in the time of either, are of executive and not 
of legislative cognizance. And as the power (of suspension) can 
only be exercised by that department which can take this cogni- 
zance, therefore the Executive only can exercise it. 

IV. That the only thing required for the exercise of this power 
to suspend, (given the conditions,) is an authority above the law 
which gives or may give the Writ ; but that authority is in this 
clause of the Constitution itself, therefore a legislative power is 
not required ; and as the framers of the Constitution did not give 
the power to a department not required to exercise it, hence they 
did not give it to Congress. 

V. That this power, (to be exercised only in case of internal 
war, viz., rebellion or invasion.) necessarily belongs to him only 
whose duty it is to put down the war, {i. e., rebellion,) but it is the 
duty of the President {only?) to suppress rebellion, therefore, this 
power to suspend the privilege belongs to him only. 

VI. Congress, by any law it might pass, could only grant an 
authority to the President to suspend, but that authority has already 
been given (to the President ?) by the Constitution ; therefore their 
law Avould be useless, and as the framers of the Constitution can 
not be supposed to have authorized Congress to do a useless act, 
hence they did not give this power to Congress. 

A gentleman, of Philadelphia, of high legal reputation, has pub- 
lished an argument to prove that the Convention which prepared 
the Constitution of the United States, meant to give to the Presi- 
dent, and not to Congress, the power to suspend i\iQ i^rivilege of the 
Habeas Corpus. These propositions are the pith of his argument, 
and it is in reply to them that the following remarks are submitted. 



In considering this subject there are certain things to be con- 
stantly kept in mind. They are, 

1. That it is not the question whether the Government or any 
of its departments would, in a time of extreme peril, be excusable 
for suspending the Habeas Corpus, or arresting upon suspicion, or 
for doing any other act, 7iot tvarranted by the Constitution, but 
which the public safety might require. 

2. It is not a question about the power of the General Govern- 
ment, or what it may or may not do. 

3. The question is — to which of two of the departments, viz., 
the Executive or the Congress, did the framers of the Constitution 
mea7i to give the power ? 

4. We may think that, upon every ground of reason and 
fitness, the President alone ought to have the power; but if the 
authors of this Constitution did not give it to him, then we dare 
not say he has it. 

5. In seeking for their meaning we must look at the subject, not 
from our own, but from their point of view. Through what medium 
did they look at it? It was doubtless a very different one from the 
present, but it is nevertheless the only one through which we should 
view it. 

The clause itself has already been quoted. It has correctly 
been said that the sentence is elliptical; but that it may be read 
with the proper ellipsis, and show more clearly the sense ascribed 
to it, by those who argue for the President's power of suspension, 
let it be written thus, viz : 

"The privilege of the Writ of Habeas Corpus shall not be sus- 
pended, unless when, in cases of rebellion or invasion, the public 
safety may require it;" [and then the President may suspend it.^ 

Those who contend that the power of suspension is in the Presi- 
dent, do and must read that section as it is thus written; while 
those Avho affirm that the power is in Congress alone, must substi- 
tute the Congress for the President. 

The history of the clause has been stated with conciseness and 
accuracy, but as it will be referred to in the following remarks, a 
re-statement of it, with one or two additional facts, may aid in 
its interpretation. 



When the Convention was ready to proceed to business, Mr. 
Edmund Randolph, of Virginia, offered fifteen resolutions, as the 
basis of a plan, and Mr. Charles Pinckney, of South Carolina, 
offered, as the plan of the Federal Government, sixteen articles, 

Mr. Randolph meant by his propositions merely to introduce 
other and more particular ones, which would explain the outlines 
of the system he had in view. 

The plan of Mr. Pinckney seemed designed as a complete Con- 
stitution ; and, in its general tenor and form, it very much resembled 
the Constitution afterwards adopted. 

Article VI. related to the Legislature of the United States, and 
in it were grouped nearly all the powers given to, and the restric- 
tions upon, that department; after an enumeration of the several 
powers so given, it contained this clause : 

" The Legislature of the United States shall pass no law on the 
subject of religion, nor touching or abridging the liberty of the 
press; nor shall the privilege of the Writ of Habeas Corpus ever he 
suspended except in case of rebellion or invasion." 

With the exception of Mr. Patterson's plan, which was offered 
on the 15th and rejected on the 19th of June, those of Mr. Ran- 
dolph and Mr. Pinckney, were the only ones offered. The Con- 
vention, with those two plans before it, resolved itself into a Com- 
mittee of the Whole House, and then took up Mr. Randolph's 
fifteen resolutions, which, one by one, they debated and amended, 
till the fifteenth of June, when the Committee reported to the 
Convention nineteen resolutions, based on Mr. Randolph's plan. 
These Avere debated till July 26, when all their proceedings (ex- 
cept those relating to the National Executive, which they retained 
for debate) Avere, together with the plan of Mr. Pinckney and the 
resolutions of Mr. Patterson, referred to a Committee of five, or 
of detail, who, on August 5, reported to the Convention a plan of 
a Constitution, containing twenty-three articles. In the Vllth of 
these were classed the powers given to, and the restrictions upon, 
the Legislature, in like manner as in the plan of Mr. Pinckney. 

Art. XI. related to the Judiciary, and the 4th section of it was 
as follows : — " Sec. 4. — The trial of all criminal offences (except 
in case of impeachment) shall be in the State tvhere they shall be 
committed, and shall be by jury." 



Other resolutions were from time to time afterwards referred to 
the Committee of Detail, but in this, their first report, there was no 
clause relating to the Habeas Corpus. 

On the 20th of August, Mr, Pinckney submitted and the House 
referred to the Committee of Detail, certain propositions, one of 
which was this, viz : — 

" The privileges and benefit of the writ oi Habeas Corpus shall be 
enjoyed in this Government in the most expeditious and ample 
manner, and shall not be suspended by the Legislature, except 
upon the most urgent and pressing occasions, and for a limited 

time, not exceeding months." — Mad. Deb., 5. Ell. Deb., p. 

434. 

This was the second time that Mr. Pinckney had, among other 
resolutions, offered one restraining the suspension of the privilege 
of the Habeas Corpus, and on the 28th of August, and when Sec. 4 
of Article XI., relating to the Judiciary, was under discussion, it 
was amended, nem. con., so as to read: 

" Sec. 4. — The trial of all crimes (except in cases of impeach- 
ment) shall be by jury; and such trial shall be held in the State 
where the said crimes shall have been committed ; but when not 
committed within any State, then the trial shall be at such place 
or places as the Legislature may direct." 

Mr. Madison (5 Ell. Deb., p. 484) immediately adds,—" Mr. 
Pinckney, urging the propriety of securing the benefit of the Habeas 
Corpus in the most ample manner, moved that it should not be 
suspended but on the most urgent occasions, and then only for a 
limited time, not exceeding twelve months. 

" Mr, Kutledge was for declaring the Habeas Corpus inviolable. 
He did not conceive that a suspension could ever be necessary at 
the same time, through all the States." 

" Mr. Governeur Morris moved that " The privilege of the 
writ of Habeas Corpus shall not be suspended, unless where, in cases 
of rebellion or invasion, the public safety may require it." 

" Mr. Wilson doubted whether in any case a suspension could 
be necessary, as the discretion now exists with the judges in the 
most important cases to keep in gaol or admit to bail." 

The first part of Mr. Governeur Morris's motion, to the word 
"unless," was agreed to, yiem. con. 



8 

On the remaining part — New Hampshire, Massachusetts, Con- 
necticut, Pennsylvania, Delaware, Maryland, Virginia, — 7 voted 
aye ; North Carolina, South Carolina, Georgia, — 3 voted no. So 
this clause was, as it is expressed on the journal, "added" to the 4th 
section. It will be observed that in place of the word '•'•wlien'' 
which is noAV in the Constitution, Mr. Morris used, and the Conven- 
tion adopted, the word '•'■ivliere.'" This was an amendment to a section 
which provided for the place cohere trials should be held, and it 
may be that Mr. Morris intended by the word "where" to limit 
the suspension of the writ to the place where, in cases of rebellion 
or invasion, the public safety might require it to be suspended. 
Confirmatory of this are the words of Mr. Rutledge, which, briefly as 
they are reported, show that he did not think " that a suspension 
could ever be necessary, at the same time, through aZZthe States" — 
but only, of course, in a part of them ; and immediately after this, 
Mr. Morris moved the foregoing clause. A little reflection must 
have convinced him, however, that the discretion given to the sus- 
pending power by the latter words of the clause, would allow it to 
be suspended at the same time through all the States," quite as 
well with "where" as with "when ;" hence if the clause properly 
related to the Legislature, then the mover of it, and who, as the 
Chairman of the Committee on Style and Arrangement, changed 
this amendment from the Xlth Article, which related to the Judi- 
ciary, to the IXth Article, which related to the Legislature, would 
very naturally and probably substitute "when" for "where." That 
the words were changed is not denied ; it. does not appear that 
the Convention made the change, and it is therefore probable that 
Mr. Morris himself did it. The reason first assigned, and its influ- 
ence upon the meaning of the clause, will be hereafter noticed. 

Thus being made a part of the supreme law of the land, is this 
power of suspension in the President, or in the Legislature ? 

In the first place it has been said that " this is a political rather 
than a legal question, — a mixed political and Constitutional ques- 
tion." And what then ? Does that render the question itself 
easier of solution ? Call it what you will, it still recurs for an 
answer. What is the meaning of the clause ? 

Doubtless here, as elsewhere, law may be divided into that part 
which classifies and regulates the powers of the departments of a 



9 

State, considered as a body politic, and that which regulates the 
conduct of the citizens of the State; and questions which relate to 
the former you may call jioUtical questions. 

But what if you have not yet classified the powers of the former, 
or do not even know whether such departments possess a certain 
power, or to which one of two departments it belongs ? There 
must be some one tribunal to determine whether the power exists, 
and if so where it is lodged. Let the case be that a citizen who 
has been imprisoned by the mere order of the President obtains a 
Writ of Habeas Corpus, and his keeper in the fort or prison returns 
that the President has suspended the privilege of the Writ, and has 
ordered the detention of the prisoner, the question thus presented 
is, can the President suspend the privilege of that writ 1 

Is that rather a political than a legal question ? or is It not the 
latter only, and one which the Judiciary alone can decide ? It 
would seem that simply to state such a case would be to answer it 
affirmatively. Judge Washington said of a like question — " This 
question does not so much involve a contest for poivcr between 
( two departments of the Government) as the rights and ^^rivilcges 
of the citizen secured to him by the Constitution, the benefit of 
which he may justly claim." — 5 Wheat. Rep., 22. And more than 
forty years ago, Mr. Webster, in replying to a similar remark, 
said, in the Convention to amend the Constitution of Massachusetts, 
"We look to the judicial tribunal for protection against illegal or 
unconstitutional acts, from whatever quarter they may proceed. 
It is the theory and plan of the Constitution to restrain the Legis- 
lature as well as other departments, and to subject their acts to 
judicial decision, whenever it appears that such acts infringe con- 
stitutional limits — and without this check, no certain limitation 
could exist on the exercise of legislative power. The Consti- 
tution, for example, declares that the Legislature shall not suspend 
the privilege or benefit of the Writ of Habeas Corjnis, except under 
certain limitations. If a law should happen to be passed, restrain- 
ing personal liberty, and an Individual, feeling oppressed by It, 
should apply for his Habeas Corpus, must not the judges decide 
what is the benefit of the Habeas Corpus Intended by the Constitu- 
tion ; what it is to suspend it, and whether the act of the Legisla- 



10 

ture does, in the given case, conform to the Constitution ? All 
these questions would of course arise." 

" It is a rule in construing treaties," and a much stronger one in 
construing a Constitution, "that, from history and policy, as Avell as 
language, are to be gathered the views of the parties making them." 
— Johnson, J., G Wheat. 85. By the common law of England, every 
freeman had the absolute and unqualified right to the liberty of his 
person. To suppose that right, without the legal means of maintain- 
ing it, or of regaining it, would be the highest absurdity ; therefore, 
by the law he was entitled to be forthwith restored to his liberty ; 
but as he might have violated the law, and, therefore, his liberty be 
rightly restrained, the duly constituted Judges were commanded 
to inquire and determine whether he had done so or not, and as 
that could only be done by legal process or writ, it follows that 
such writ must necessarily result from, and be coeval Avith, the 
right itself; the party imprisoned was thus of right entitled to the 
writ ; which is, therefore, called by the common law a writ of right. 
It was not one, the granting of which depended on the favor of the 
King, or the discretion of the Judges, for that would have been to 
make his Avill or their discretion the measure of the people's 
rights. 

At the common law, even in the reign of King Alfred, the most 
ancient book in the law says there was no such thing as a writ of 
favor, for they were all remedial writs, grantable as of debt, as due 
of right. — (Mirror of Justice ; c. 5, s. 1.)* 

That the common law did not allow the people to be im- 
prisoned at the mere will of the King, and that they had a right 
to be forthwith released from such imprisonment, did not hinder 
the Kings of England from beating down the right, or delaying the 
remedy. 

From the time that King John ascended the throne, till James 
II. abdicated, there was an undying struggle between the prero- 
gative to imprison without bail, trial, or judgment, and the privi- 
lege from arrest, unless by due course of law. 

The ignorance and wilful disregard, by King John and his Judges, 
of the old and accustomed laws and rights of the people, the do- 
mestic injuries received from him in person, as well as from acts of 

* "Tlie Righ:3 and Liberties of Englisliioeu," 



11 

general oppression, obliged them bj force of arms to wrest from 
him the Great Charter. What those chief and accustomed laws 
were, and how they had been violated, may be learned from the 
Charter itself, and from the articles which they compelled him to 
subscribe to immediately preceding it. 

One of those articles shortly and forcibly expresses the right of 
every freeman to his personal liberty, and forever forbids his im- 
prisonment without due process of law. — Chap. 29. " Ne corpus 
liberi hominis capiatur nee imprisonetur nee dissaisietur nee utla- 
getur nee exuletur nee aliquo modo destruatur nee rex eat vel 
mittat super eum vi nisi per judicium parium suorum vel per legem 
terre." 

The like words are in the Great Charter itself. But neitlier 
John nor many of his successors appear to have regarded the most 
solemn laws, their own Charters, or even their own oaths. 

From the granting of Magna Charta till the time of Sir Ed- 
ward Coke, he declared that it had been established, confirmed, and 
commanded to be put in execution, by two and thirty several acts of 
Parliament. But history has never been able to record the un- 
numbered violations of that Charter, especially of its prohibition 
of arbitrary imprisonment. 

Among the devices to evade the privilege of the Habeas Corpus, 
and to maintain the power of arbitrary imprisonment, it was pre- 
tended that in the towers and castles of the King freemen might be 
imprisoned by the order of the King and his chief officers, as if those 
forts were not Avithin a county, or as if the Writ of Habeas Corpus 
did not run therein ; but to remedy that, even in the reign of one 
of the most lawless and law-suspending Kings, llichard II., it 
was enacted that the King's castles and gaols, which were wont to 
be joined to the bodies of the counties, but were then severed there- 
from, should be re-joined to the same counties. So intent were the 
people to secure their liberties entire and inviolate, that they added 
to the resolves of the Parliament the sanctions of the Church and 
of religion ; for by the fourth chapter of the Great Charter of 
Edward I., the archbishops and bishops were commanded to ex- 
communicate all those who, by word, deed, or counsel, broke that 
or the prior Charters ; and the clergy proposed a formal and dread- 
ful curse upon whomsoever should violate that, as in like manner in 



12 

May, 1253, the prelates of England had denounced whomsoever 
should break or judge against the Great Charter of Henry III. 

In the Petition of Right, 3 Charles I., Chap. 1,, which was pre- 
sented in 1628, it was stated that the people had oaths administered 
to them not warranted by the laws ; that Commissioners had been 
appointed by the King to proceed within the land, according to 
martial law ; that when Writs of Habeas Corpus had been sued 
out, the prisoners were remanded to prison upon a return that 
they were held by the mere warrant of the King, signified through 
the members of his privy council ; and these acts, and others of 
the like nature, were declared to be wholly contrary to law ; and 
the parliament demanded, and the King, failing in his attempt to 
evade it, was compelled to declare that these were violations of the 
ancient and undoubted rights and liberties of the people, and that 
if the alleged oflfenders had violated the laws and statutes of the 
land, by the same laws and statutes also, they might, and by no 
other they ought to, have been judged. Even this did not restrain 
this King, or secure the people from arbitrary arrest. By usurpa- 
tion and connivance, there had grown up a court called the Star 
Chamber, which, at first, pretended to inquire of the ofi'ences of 
great men and State criminals, but, on whatever pretence it was 
at first allowed to exercise its powers, it was soon made use of as 
an instrument of arbitrary power to crush whomsoever the Minis- 
ters and Secretaries of State and their favorites had a mind to put 
out of the way, or to destroy. 

It had no known rules or laws of procedure ; " Holding," as 
Lord Clarendon declared, " for honorable that which it pleased, and 
for just, that which profited." It disregarded Writs of Habeas 
Corpus, and its victims were left to linger in confinement. 

By the 16 Charles I., c. 10, the Parliament declared that the 
proceedings of that Court were contrary to the rights and privi- 
leges of the people, an intolerable burthen, and the means to 
introduce an arbitrary government ; and they forever abolished it. 
Still that did not put an end to the unlawful imprisonment of the 
people. For when Writs of Habeas Corpus were applied for, the 
judges many times pretended to have power to grant or deny the 
writ at their pleasure ; and, when they granted them, the jailors, 
in turn, claimed, by custom, a right to keep the prisoner till a 



13 

second and third Writ had been sued out, and served on tliem ; and 
■when the imprisoned and oppressed subject at length got the Writ, 
the judges would often allege that they could not release, or even 
take bail for his appearance to answer his accuser, because he Avas 
a prisonei' of State. 

To debar these and the like evasions of the people's right to 
the Writ, and to provide a complete and effectual remedy against 
its obstruction, the Parliament passed the ever memorable statute 
of 31 Charles the II., c. 2, known as the Habeas Corpus Act. 
Yet, plain and stringent as were its provisions, even that did not 
altogether secure the people from unlawful imprisonment; for, no 
sooner had James the II. ascended the throne, than he claimed 
the power, without the consent of Parliament, to dispense with 
and suspend the laws and the execution thereof. 

For that claim the people drove him from his kingdom, and by 
the Declaration and Bill of Rights (which were declaratory only 
of the common law and the rights of the people) it w^as declared: 

"I. That the pretended power of suspending laws or the exe- 
cution of laws by Regal authority, without consent of Parlia- 
ment, is illegal." 

It was to avoid, among other things, the arbitrary seizure of 
their property and the imprisonment of their persons, without 
cause shown by the King or his officers of State, that the people 
emigrated to these Colonies. 

In the Mother Country they had claimed these chartered pri- 
vileges as their birth -right ; but which, being refused to them there, 
they came here to enjoy. Those great rights being theirs, so, too, 
were these great remedies; in full consciousness of their right to 
which, they silently adopted them as their undoubted inheritance. 

But as it was in England by the King, so it Avas here "the prac- 
tice of some of the Governors to imprison the people without 
bail," Indeed, in their arbitrary conduct, they often exceeded 
that of their royal masters ! Nor Avere the Colonial Judges be- 
hind either: Avitness the conduct of the Chief Justice of Massa- 
chusetts on the trial of the Rev. John Wise and others. Being 
denied the Writ of Habeas Corpus, they Avere at length put on 
their trial ; they claimed the privileges secured to them as Eng- 
lishmen by the Magna Charta and the LaAvs of England. The 



14 

Chief Justice, however, informed them that they must not expect 
"Ensrlish analoo-ies" wouhl follow them to the ends of the earth, 
and concluded by telling them that they had no more privileges 
than to he sold as slaves. — Washbourne, Jud. Hist. Mass., 116. 

And, in 1710, the Legislature of New Jersey was obliged to 
denounce Judge Pinham for corruptly refusing to Thomas Gordon 
the Writ of Habeas Corpus, Avhich they declared was the un- 
doubted right and great privilege of the subject. — Hurd, Habeas 
Corpus, p. 114. As the Revolutionary struggle drew on, the 
statesmen and people of this country saw clearly that it was the 
King who was pressing upon their privileges; they felt that his 
influence was great, was increasing, and would, if not checked, 
deprive them of their rights ; and they were conscious — what his- 
tory has since clearly revealed — that it was under the controlling 
influence of the King himself, that Lord North and his ministerial 
supporters passed those arbitrary and impolitic laws which drove 
a loyal people into rebellion. 

Inspired by his will, the Ministers pressed, and had passed, the 
Quebec bill, which decreed an arbitrary rule over the vast region 
which included, besides Canada, the area of the present States of 
Ohio, Michigan, Indiana, Illinois, and "Wisconsin. It denied the 
people the right of trial by jury, the Writ of Habeas Corpus, and 
left them to the French process of Lettres de Cachet, more odious 
than general search-warrants. This flagrant act was denounced 
in the several Colonies, and the Continental Congress, in Septem- 
ber, 1774. 

With the records of all history before them ; with the knowledge 
of what their ancestors had suffered through the power which Kings 
and their Ministers had claimed and exercised in arresting and 
imprisoning the people, "that, even in the Colonies, it had been 
attempted to vindicate and develop the efficiency of royal procla- 
mations, both in suspending laws already made, and in legislating 
for cases — not yet regulated by Statutory provisions." 1 Graham's 
Hist., p. 90. That they had just solemnly declared that, to their 
own knowledge, the King had suspended the passage of laws, and 
even the power of the Legislature itself, and that although these 
acts of the King had been done through a Legislature, yet they 
had been prompted by his arbitrary disposition, and carried out 



15 

by his influence and will. Their own hitter experience had shown 
them "with how little equity absolute power is exercised even by 
those who have shown themselves most prompt to resent the influ- 
ence of its rigor upon themselves." — 1 Graham's Hist., p. 100. 

Even, with their mild principles, the proprietors of Pennsylvania 
had lately shown that they needed but the power to play the 
tyrant ; and Franklin, in commenting on their conduct, had just 
said — '•'• Poiver^ like water, is ever working its own way; and when- 
ever it can find or make an opening, is altogether as prone to 
overflow whatever is subject to it. And though matters of right 
overlooked may be reclaimed and reassumed at any time, it can- 
not be too soon reclaimed and reassumed ; and though protection 
is the reason, and consequently should be the end of government, 
we ought to he as much upon our guard against our protectors as 
against our enemies.'' — 4 Gr. Col. Hist., p. 440. That was a 
period when the pulse of liberty beat high. "In other countries," 
said Burke, "the people, more simple, and of a less mercurial cast, 
judge of an ill principle in government only by an actual grievance ; 
here they anticipate the evil, and judge of the pressure of the 
grievance by the badness of the principle. They augur misgovern- 
ment from a distance, and snuff the approach of tyranny in every 
tainted breeze." 

Is it probable, then, that men, in whose minds these principles 
of freedom, and even of democratic freedom, were engrafted and 
incorporated, and who had just emerged from a struggle against 
the will of one man, would at once, in framing their own Govern- 
ment, give to one man — their Executive — a power to suspend their 
privileges — a power which even he, whom they had called a tyrant, 
could not exercise ; and not only give that power, but part with it 
forever to him and his successors, and thus place it beyond the 
control of the people, or their immediate representatives ? 

One class of thinkers may, indeed, be predisposed to think that 
most probable. For what has been said of the English Constitu- 
tion may, in these days, be said of our own. 

" Revolution and civil war have marked the influence of opposite 
opinions with respect to the popular nature of our Constitution. 
These dreadful and perilous scenes could not fail to transmit this 
original division of sentiment to us — their posterity. The distinc- 



16 

tion between those who incline to the popuhir part of the Consti- 
tution and those who incline to the monarchial — exists to this hour, 
and can cease only with the Constitution itself. The great lead- 
ing idea which should be formed of our constitutional history, is 
that there has always been a constant struggle between preroga- 
tive and privilege. * * Now, such being the real picture of 
our constitutional history, the student is, in the next place, to be 
reminded of the natural divisions, not only of mankind, but of 
philosophers, on political subjects and the manner in which they 
separate into two classes. Those, for instance, Avho are anxious, 
first and principally, for the prerogative of the Crown ; and those, 
on the other hand, who are zealous, first and principally, for the 
privileges of the people." — Smythe's Lect. on Mod. Hist., p. 87, 88. 
Besides, to judge correctly whether they would probably change 
the law in this respect, it should be considered what it then 
was, as finely expressed in the Commentaries of Blackstone, 
with which they were familiar. "Of great importance to the 
public is the preservation of this personal liberty; for if once it 
were left in the power of any, the highest magistrate, to imprison 
arbitrarily whomsoever he pleased or his officers thought proper, 
(as in France is daily practised by the Crown,) there would soon be 
an end of all other rights and immunities. Some have thought that 
unjust attacks even upon life or property, at the arbitrary will of 
the magistrate, are less dangerous to the Commonwealth, than 
such as are made upon the personal liberty of the subject. To 
bereave a man of life, or by violence to confiscate his estate with- 
out accusation or trial, would be so gross and notorious an act of 
despotism as must at once convey the alarm of tyranny throughout 
the whole kingdom ; but confinement of the person, by secretly 
hurrying him to gaol, where his sufi'erings are unknown or forgot- 
ten, is a less public, a less shocking, and therefore a more danger- 
ous engine of arbitrary government. And yet, when the State is 
in real danger, even this may be a necessary measure. But the 
hajjpiness of our Constitution is, that it is yiot left to the Execu- 
tive p)ower to determine whether the danger of the State is so 
great as to render this measure expedient, [or the public safety 
may require it?^ for it is the Parliament only, or the Legislative 
power, that, whenever it sees proper, can authorize the Crown, by 



suspending the Habeas Corpus Act for a short or limited time, to 
imprison without giving any reason for so doing." — 1 Blk. Com,, 
p. 135. 

It Avas highly probable that the people of the United States 
would greatly limit this "Legislative power;" but if it were the 
happiness of the English and the American Constitutions at that 
time, that it was not left to the Executive to determine when the 
danger of the State rendered the suspension expedient, is it 
credible that this luippy feature would be blotted out forever, and 
the power given to the Executive to determine "when the public 
safety may require" the suspension? 

Whether they did that or not will now be considered. 

"Without the adoption of this clause the Federal Government 
would or would not have had the power to suspend the privilege of 
the Writ. Let it be assumed (what is not admitted, however) that 
it would. It is clear nevertheless that the Judiciary could not have 
had it, for even now their authority to issue that Writ is given, not 
by the Constitution, but by the Legislature. Nor could the Presi- 
dent have had it, for his claim to that power is rested solely on the 
existence of this section; (indeed, if the power has been given to 
him under any other clause, it weakens, if it does not entirely 
negative, the presumption that it is given to him by the 9th sec- 
tion;) as, then, this power could not belong to the Judiciary^ or to 
the President^ it follows that it would belong to the Legislature. 
On the other hand, let it be assumed that it is this section which 
gives that poiver to the Federal Government, yet the like reasoning 
will show that it can only be exercised by the Legislature. Thus 
as it was by concession a power which could only have been exer- 
cised by the Parliament in England, or by the Legislatures of the 
several States, those who now attribute it to the President must 
show that that section contains three things — 

1st. The grant of the j^ower. 2d. That those who granted it, 
changed it from the Legislative department in which, under the 
English and American Constitutions, it always had been, and but 
for this specific change would have remained, to the President, or 
Executive department of the Government; and 3d. That this power 
to suspend, is a limited one. 
B 



18 

Now two of those things may be found in that section. 1st, the 
grant of the foioer^ and 2d, a limit to the power thus granted, but 
that is all ; the 3d is not declared, there is not in the whole instru- 
ment the Djleam of an intention to change the old, accustomed and 
only organ of this power. It has been admitted that "the Consti- 
tution does not expressly say by what department of the Govern- 
ment this privilege is to be denied or deferred." But it is clear that 
a grant of the poiver, with a limit to it does no more change and 
make the President the organ which is to exercise it, than would 
the mere admission that the power existed without the grant, make 
Am that organ. 

Whether then the j^o^t^cr to suspend existed without, or is given 
by, that section, it does not change the organ which had theretofore 
exercised it. But as a general power to suspend, whether as- 
sumed to exist Avithout, or given only by, that section, would have 
enabled Congress to suspend that privilege at any time and for any 
cause, or even without a cause; and as the people of the United 
States "regarded that as a very exceptional fact, and wholly inad- 
missablc by them," they meant not to exclude congressional law, 
as some would have it inferred, but to limit congressional power ; 
and that they did by prescribing the conditions on which alone 
Congress should ever exercise the power. In other Avords, they 
did not change the trusteeship of this, their privilege, but they did 
very greatly limit the power of their trustees. 

Those who argue for the President's suspending power, feel 
themselves sorely pressed by the analogy of the English law, and 
the better to get rid of it they insist that suspending the privilege 
of the Writ, is not an English law expression ; that the word sus- 
2)ended, as applied to the privilege, is not a word of the commoji law, 
or of any other system of laws in particular. That the phrase, 
the p>rivilege of the Writ of Habeas Corpus shall not be suspended, 
VfSLS first introduced into the Constitution of the United States, and 
therefore, we should not look to English constitutional history 
or law for the meaning of those words, or for an argument from 
analogy. It would be quite as pertinent to tell us to study 
Theology without the Bible, or American Literature without Chau- 
cer, Shakespeare, or Milton, or our own language without an English 
Dictionary, as to require us to study, or even understand that 



19 

part of our own Constitution, Avithout a knowledge of the j>rivile(/cs 
of Englishmen, and of the great charters and statutes in which 
they are recorded. 

The American colonists always claimed to possess, and the Con- 
tinental Congress of 1774 declared they were entitled to, all the 
rights, liberties, and immunities of free and natural born subjects 
within the realm of England. — Hurd. p. 105. 

" The colonists," said Chatham, "are equally entitled with your- 
selves to all the natural rights of mankind, and the peculiar privil- 
eges of Englishmen." 

The colonists were devoted to liberty, but it Avas to the principles 
of English liberty. These principles Avere incorporated into their 
minds, " from their extraction, their religion, the Avorks they read, 
and the form of their colonial governments" — ( Smythe's Lectures, 
593,) the latter of Avhich Avere modeled on that of England. In 1774, 
Mr. Burke said of the colonies, "In no country in the Avorld is the 
law so general a study. * * No books save those of devotion are so 
generally sent from England thither than on law. I hear they have 
sold nearly as many of Blackstone's Commentaries in America as 
in England." In October, 1768, the Massachusetts Assembly 
resolved, "That all the essential rights, liberties, privileges, and 
immunities of the people of Great Britain had been fully confirmed 
to them by Magna Charta, and by former and latter Acts of Parlia- 
ment, and in a petition from the' New York Convention to the 
House of Commons, they said, "It is from and under the English 
Constitution Ave derive all our civil and reli2:ious rights and liber- 
ties." And Mr. Burke said, "English ^rmVg^es have made Amer- 
ica all that it is; and English privileges, alone, Avill make it all it 
can be." 

Of a people, Avho risked a revolution to secure for themselves 
and their posterity the great principles of English liberty, we could 
readily infer, Avhat indeed Ave knoAV, that they Avould be guided by 
the same principles in organizing a government for themselves, and 
it necessarily foUoAvs that they Avould use words and phrases like 
those in Avhich they had been accustomed to find these principles 
recorded. It Avill be found, therefore, that those Avords in the Con- 
stitution Avere aa'cII knoAvn to, and Avere used by, Avriters on the 
Common LaAV and by statesmen ; and that they Avere not singly or 



20 

together first used in the Constitution of the United States. Be- 
fore noticing the meaning and application given to them, and 
the arguments based on both, by those who assign the suspending 
power to the President — the folloAving remarks are submitted : 

Privilege. — In its legal and political acceptation in England and 
in the American colonies, this word does not signify what it may have 
originally meant, viz., a peculiar benefit or immunity which one 
citizen enjoyed beyond that of other citizens ; but the word privilege 
was in common use, to signify those civil and political 7-ights claimed 
by Englishmen as peculiar to them and not common to other na- 
tions. In commenting on the words of the 20th chap, of Magna 
Charta, 9 Hen. 3. " Nullus liber homo capiatur, vel imprisonetur, 
aut dissaisietur de aliquo libero tenemento suo, vel libertafibus vel 
liberis consuetudinibus, &c. — Professor Sullivan says, " The word 
^ lihertatihus' comprehends, — 1. The Laivs of the realm that every 
man should freely enjoy such advantages and priinleges as those 
aws give him. — 2. It signifies the privileges that some of the 
subjects, whether single persons or bodies corporate, have above 
others, by the lawful grant of the King. — Lee. 41, p. 372. 

In the act of 31 Charles I. chap. 10, sec. 2, which abolished 
the court of Star Chamber, it is declared that the council table 
"had lately ventured to determine of the liberty of the subject 
contrary to the laws of the land, and the rights and privileges of the 
people." 

In the Parliament that assembled in 1640, Waller denounced 
certain divines as manifestly in the wrong in that which concerns 
the liberties and privileges of the subjects of England. 

In the speech made by George I. on the introduction of the 
Peerage Bill by the Ministers, he said, " As the civil rights and 
privileges of my subjects claim my concern," &c., and in his speech 
dissolving Parliament, in 1734, he said, "The happiness of my 
people depends upon my preserving to them all their legal rights 
and privileges, as established under the present settlement of the 
crown," &c. 

In a remonstrance drawn by Otis, in 1761, for the Massachusetts 
Assembly, an act of the Governor and Council was denounced as 
" an invasion of the most darling privilege, the right of originating 
all taxes." — 4 Grab., 87. 



21 

111 1745, Virginia resolved that the most substantial and distin- 
guished part of their political birth-right was the privilege of being 
taxed exclusively by themselves, and that they had always exercised 
this privilege. — 1 Grab., 203. 

The Convention of the Colonies, which met in New York in 
1765, voted that the most essential of their liberties were the 'pri- 
vileges of taxing themselves and of trial by jury. — 4 Gra., 217. 
These and the like words, in almost every page of English and 
American history, show the sense in which the word privilege was 
used. But the framers of the Constitution used the same word in 
article 4, section 2, of the Constitution. " The citizens of each 
State shall be entitled to all privileges and immunities of citizens 
in the several States;" and it is fortunate that these words, and 
the word privilege used in the Habeas Corpus clause, have been 
explained by a Judge, of the tone or ring of whose opinion no one 
can complain. 

In the case of Corfield v. Coryell, 4 Wash. C. C. Rep. 380, Judge 
Washington said, "The inquiry is, what are the privileges and 
immunities of citizens of the several States? AVe feel no hesita- 
tion in confining these expressions to those lyrivileges and immuni- 
ties which are in their nature funela mental ; which belong of right 
to the citizens of all free Governments. * * They may all be 
comprehended under the following general heads: The enjoyment 
of life and liberty, and to pursue and obtain happiness and safety ; 
subject, nevertheless, to such restraints as the Government may 
justly prescribe for the general good of the whole. The 7^ight of 
a citizen of one State to pass through, or to reside in any other 
State, for purposes of trade, &c., to claim the benefit of the Writ 
of Habeas Corpus, &c., may be mentioned as some of the particu- 
lar privileges and immunities of citizens, which are clearly em- 
braced by the general description of privileges, which are deemed to 
be fundamental, to which may be added the elective franchise," &c. 

This, then, is the meaning of the word privilege and the sense 
in which it is to be read in the Habeas Corpus clause, viz : " The 
right to claim the benefit of the Writ of Habeas Corpus shall not 
be suspended,'' &c. The privilege of a thing then means the right 
to a thing; and the privilege of the Writ of Habeas Corpus, 
means the right to the Writ of Habeas Corpus, just as the phrase, 



00 



the 2^1'ivilege of trial Inj jury, means the right to trial by jury. The 
idea of the former is, too, quite as old as the latter. Nor is the 
phrase itself, viz: ^^ The privilege of the Writ of Habeas Corpus,'' 
a new one. It was known and used in England nearly one hundred 
years before our Constitution was made. In 1692, the Province 
of Massachusetts Avas organized under a new charter, under Avhich 
the General Court passed certain laws, one of them claiming the 
beneft of the Writ of Habeas Corpus was rejected (by the King) 
on the ground that ^^ the privilege had not yet been granted to the 
plantations." — 1 Barry's Hist. Mass. This colonial act adopted, it 
is said, the Habeas Corpus Act of 31, Charles II., and it was disal- 
lowed in 1695. — Hurd on Hab. Corp., p. 111. But "the right 
to the Writ, was, before that time claimed as one of the existing 
privileges of the Colonists in Massachusetts," Hurd, p. 110, and 
in a book, the second edition of which was published in England 
in the year 1767, named like, and based upon Henry Care's Bri- 
tish Liberties, it is said : — 

"Many gentlemen that refused (to grant supplies to Charles the 
First) were imprisoned or sent abroad by the King and his privy 
council, and the Judges refused, to several that applied for it, the 
privilege of the Writ of Habeas Corpus, to which they were enti- 
tled by the ancient common law of the realm." That, be it 
observed, was before the Petition of Right or the passage of the 
Habeas Corpus Act. 

Not only then was it known that the word privilege signified the 
right to the Writ of Habeas Corpus, as it did to the trial by jury, 
and other rights of the people of England, but the phrase, "the 
PRIVILEGE of the Writ of Habeas Corpus," appears to have been 
well known to and used in the Colonies and in England, at least as 
early as 1692; and, it may be here stated, that the whole clause 
now in the Constitution of the United States, including the word 
suspended, as applied to the privilege, was borrowed from the 
Constitution of JNIassachusetts, in which it had been used ten 
years before; and not only that, but the privilege had actually 
been suspended by the Legislature of Massachusetts a year before 
the Constitution of the United States Avas adopted. 

In September, 1778, a State Convention was called in Massa- 
chusetts. They framed a Constitution, which, having been approved 



23 

by the people, tlie Convention adopted in June, 1780. The city 
of Boston agreed to it, "but with proposed alterations, one of 
them respecting the privilege of the Writ of Habeas Corpus ; with 
regard to this, they wished that the privilege should be more accu- 
rately defined and more liberally granted, so that citizens should 
not be subject to confinement for susjn'cio)!.'' — Barry's Hist. Mass., 
vol. 3, p. 177-8. The article itself is in the following words: — 
" Chap. 9, Art. 7. The j;m'//e^(? and benefit of the "Writ of Ha- 
beas Corjjus shall be enjoyed in this Commonwealth in the most 
free, easy, cheap, expeditious, and ample manner; and shall not 
be suspended by the Legislature except upon the most urgent and 
pressing occasion, and for a limited time, not exceeding twelve 
months." A reference to the Habeas Corpus clause offered by 
jMr. Pinckney, on August 20th, and hereinbefore copied, will 
show that it was taken, word for word, (except, indeed, the "free, 
easy, and cheap," words,) from the Constitution of Massachusetts; 
and the whole argument based on the want of analogy between the 
English Constitution and our own, is noAV cut up, root and branch, 
by, not the analogy, but the identity between this legislative sus- 
pending clause of Massachusetts and that in the Constitution of 
the United States. If it was not a loose, it was surely then an 
"inaccurate expression," to say that those words "were/rs^ intro- 
duced into the Constitution of the United States." 

The occasion of the suspension was Shay's Rebellion — after 
which, viz : (on Nov. 10, 1786,) the privilege of the writ was sus- 
pended for eight months. — Barry's Hist. vol. 3, p. 235. 

It is not then correct to say that the expression "suspending the 
privilege" was first introduced into the Constitution of the United 
States. Nor, indeed, was the thing itself, or the like expressions 
unknown here or in England. 

To suspend signifies to withhold, "to debar" for a time, from the 
execution of an office or the enjoyment of a revenue or of any 
privilege. — Worcester. To debar from any privilege, to cause to 
cease for a time from operation or effect, as to suspend the Habeas 
Corpus Act. Suspended, prevented from enjoying a right. — Web- 
ster. That the privilege of the Writ of Habeas Corpus shall not 
be suspended, means then, that the right to the Writ shall not 
cease for a time, unless, &c. 



24 

1. It is very obvious, therefore, why the word privilege was made 
the subject of the predicate suspended. 

In relation to the Government of the United States, there was 
no Habeas Corpus Act ; for while the Writ was, the Habeas Corpus 
Acts were not, the same in the several States ; nor could it be known 
whether Congress Avould ever pass such an Act, (which, indeed, they 
have not yet passed ;) consequently there was no Act, present or 
future, to be suspended. 

2. Nor, had they suspended the Act of 31 Chas. II., or any other 
act, would that have effected their object ; because as the Common 
Law privilege of, or right to, the Writ was not given by an Act, the 
suspension or even the repeal of the Act would have left the privil- 
ege or 7'i<ilit unaffected. — See Hur. Hab. Cor., p. 133. 

3. It would not have been logical to have said that the Writ 
should not be suspended, because that would have been to sus- 
pend a remedy while leaving the privilege of, or right to, the Writ 
untouched, and it would possibly have left the privilege, or right 
itself, open to be suspended at any time ; for it might have been 
contended that the suspending power Avas only prohibited from 
suspending the Writ, but was not prohibited from suspending the 
privilege or right itself before invasion or rebellion ; it follows, 
therefore, that the Convention was logically obliged to say that 
the p)rivilege should not be suspended : thus forever guarding 
the right itself, save only in the cases mentioned in the clause. 
Nor could any word but suspended have been used. For the right 
to the writ being an original and inherent right — it could only 
have been suspended ; it could not have been taken away entirely. 
Nor was the suspending a privilege or right a novelty in Eng- 
lish law. The suspending power had long been a subject of legal 
and parliamentary discussion in England. The power itself, or 
the expediency of exercising it, had never been denied to parlia- 
ment, but when it was claimed and exercised for and by the King, 
as the like power is now claimed for the President, the people by 
the Declaration and Bill of Rights declared and ordained that by 
the Common Law it never had and that it never should be exercised 
by their Executive, but by their Legislature only. 

In speaking on Fox's East India Bill, Mr. Burke said, " The 
rights of men, that is to say the natural rights of mankind, are, 



25 

indeed, sacred tilings. If these natural rights are further secured 
against power and authority by written instruments and positive en- 
gagements, they are in a little better condition. Indeed, this formal 
recognition by the sovereign power, of an original right in the 
subject, can never be subverted but by rooting up the radical prin- 
ciples of government, and even of society itself. The charters 
which we call by distinction Great are public instruments of this 
nature, I mean the charters of King John and King Henry III., 
and the rights secured by these instruments may, without any 
deceitful ambiguity, be very fairly called the Chartered Rights of 
Men. 

"But, sir, the East India Charter is a charter to establish mo- 
nopoly, and to create power." " These chartered rights (viz., of the 
East India Company) do at least suspend the natural rights of 
mankind at large, and in their very frame and constitution are 
liable to fall into a direct violation of them." The j^rivil eg e of the 
writ of Habeas Corpus is one of the natural privileges secured to men 
by the Great Charters. Mr. Burke included it among the others, 
so that to speak of suspending that privilege Avas not then a no- 
velty to the lawyers or statesmen of England. And Avhy should it 
have been one to the lawyers and statesmen of the United States ? 
In fact they well knew, and had before complained of the suspen- 
sion of a like privilege. 

The right of the people to legislate for themselves being a natural 
right, and by law as much a privilege as any other belonging to 
Englishmen, the King, in Parliament, was justly coniplained of 
for suspending our own legislatures, " and also for suspending the 
operation of laws." It has been asserted " that the Habeas Corpus 
Act of 31 Charles II. has never been suspended for a moment ;" and 
that the English Imprisonment Acts used no such words as to the 
English Habeas Corpus Statute or Writ, and hence it is left to be 
inferred that the use of the word suspended in the Constitution 
was unknown to the English law. ( That argument would not have 
been used as a make-weight had it not been for the impression of the 
writer that the expression had been first used in the Constitution 
of the United States ; that has been shown to be incorrect, but still 
the assertion may be noticed, as it involves an argument against, 
and not for, the President's power.) It may be literally true that 



26 

the Habeas Corpus Aet lias never been suspended. Lord Brougham 
had before made the same remark. — Pol. Philos., vol. 3. But, 
in the sense in which Blackstone and other legal writers used 
the expression, it is either true, or it is clear that during more 
than a century the privilege of the writ of Habeas Corpus has been 
from time to time suspended even in England. The dilemma is 
unavoidable. 

Blackstone's Commentaries were first published in 1765-8. 
But in the book before mentioned, entitled "English Liberties," 
&c., and written before that, it is said: "If the Legislature leaves 
the Executive power in possession of a right to imprison those sub- 
jects, who can give security for their good behaviour — there is an 
end of liberty : unless they are taken up in order to answer, with- 
out delay, for a capital crime ; in which case they are really free. 
The Habeas Corpus Act was intended to render the subject safe in 
this particular. Why a suspension of it hath ever been permitted, 
politicians best can answer. * * James II., when Monmouth 
was in actual rebellion against him, did not demand it. * * 
3fontesquieu knew an English Parliament had more than once per- 
mitted a temporary suspension of the Habeas Corpus Act.'' — 
Introduction, pp. 21-22. 

"This Act (31 Charles II.) has been at various times suspended, 
with respect to the power of imprisonment vested in the Crown, 
upon occasions of public alarm; such suspension usually being for 
a very short period. The general title given to such temporary 
acts has betm, 'An Act to empoAver his Majesty to secure and detain 
such persons as his Majesty shall suspect are conspiring against 
his person and Government. The following are acts of that de- 
scription: 1 W. & M., St. 1, ch. 7, 19; 7 and 8 W., 3, ch. 11; G 
Anne, ch. 15; 7 Anne, ch. 9; 1 Geo. I., ch. 8, 30; 17 Geo. II., ch. 
6; 19 Geo. IL, ch. 1; 17 Geo. IIL, ch. 9; 3-4 Geo. III., ch. 54, (May 
23, 1791:,) followed by several acts during the war then exist- 
ing." — Evans' Note: cited in Chitty's Statutes, vol. 1, p. 344. 

The 17 Geo. IIL, ch. 9, was an Act introduced in 1777 to enable 
the King, "any law or statute to the contrary notwithstanding," to 
detain in prison all who were charged with, or suspected of, com- 
mitting treason in America or on the high seas, or of being guilty 
of what the Government denominated piracy. " This was another of 



27 

those unhappy measures -which it had so long been the policy of the 
King and his Ministers to recommend, and -which sought to make -war 
in the Colonies, not so much by the thunder of artillery, as by the 
hrutmn fulmen of Parliament." "It Avas a practical suspension of 
the Habeas Corpus Act. It called men pirates, -who, at the blackest 
could only be looked upon as rebels, and thus, by a strained inter- 
pretation of the common la-w, sought to debase morally, the crimi- 
nality of acts for which the legal penalty remained the same." The 
Marquis of Rockingham, Fox, Dunning, and their friends all de- 
nounced it as a suspension of the Habeas Corpus Act. — Mc- 
Knight's Life of Burke, vol. 2, p. 163-164. The Act of 34 
George III., chap. 54, -was avowed by the Minister, Pitt, to be a 
partial suspension of the Habeas Corpus Act; and as such it was 
defended by Adair and denounced by Fox and Sheridan. — Annals 
of Great Britain, vol. 3, p. 22 and 24. " In 1817 the measures 
proposed by the Minister, (and -\vhich passed,) were the temporary 
suspension of the Habeas Corpus Act." — Bissett's England, vol. 
3, p. 341. "An Act was passed for the continuing until the 1st 
of March, 1818, the suspension of the Habeas Corpus Act." — Bis- 
sett, vol. 3, p. 341. 

" The salutary effects of the suspension of the Habeas Corpus 
Act in the year 1817." — Allison's Europe, vol. 1, chap. 4, p. 23. 
It was suspended in Ireland in 1822. — 1 Allison, chap. 10, p. 123, 
and again in 1848. — 4 Allison, chap. 43, p. 138. Chap. 56, p. 52. 
And Allison, be it remembered, is a lawyer as well as a historian. 
John Stuart Mill, in Frazer's Magazine for February, 1862, speaks 
of England haying ^^ suspended the Habeas Corpus Act." 

In 8 Mod. Rep., p. 96, there are reported the cases of the King 
vs. the Earl of Orrery, and five others, who, being committed by 
the Secretary of State for liigh treason, moved for leave to enter 
their prayer under the Habeas Corpus Act of 31 Car. 2. The re- 
port says : " This (Habeas Corpus) Act was now by another act 
of George I., chap. 1, sec. 1, suspended for a time." Neither the 
counsel for the prisoner nor for the King questioned but that the 
Act had been suspended. They both used the word suspended, and 
Ailsbury's case was cited. 

The case of Lord Ailsbury there referred to is that of Rex 
vs. the Earl of Ailsbury. — Comberbach's Rep. 421, and reported 



28 

also in Cases Tempore Holt, p. 84.— In Hil. Term., 9, William III. 
Lord Ailsbury prayed to be bailed, having entered his prayer the 
first week of this term. He was committed in March last, but (the 
report proceeds) " the Habeas Corpus Act was suspended, by a 
late statute, till September, and by a later statute until December, 
so that he could not come sooner to enter his prayer, and per Cur., 
Holt, Ch. J., " Avhen the power of the Court was taken away from 
bailing, if he doth not make his prayer the first term, when the 
law is open, he cannot do it afterwards upon the Habeas Corpus 
Act ; but when the Act is suspended it must be understood that he 
must do it the first term after the suspension. And so we held 
xji^OTi i\\Q ^ornxeY Act oi suspension.'' 

It may be that from the time of Lord Chief Justice Holt, to John 
Stuart Mill, in 1862, Chief Justices, Judges, lawyers, and writers 
upon law, statesmen, and historians, have spoken loosely on this 
point. But what did they mean — and suppose they would be under- 
stood by others to mean ? During the existence of those suspending 
acts, it is true that some people were entitled to the privilege of 
the Habeas Corpus Act ; therefore, as to them, the Act was not 
suspended, and so, to speak literally, the Act, as a whole, and as 
applying to all persons, was not suspended. But as the Habeas 
Corpus Act might be suspended, as readily as repealed, as to all 
persons, why, then, could it not be suspended as to some of them ? 
There is no technical impossibility in such a suspension, and it was 
just tliat suspension, and that only, which Blackstone, and all 
who have so termed it, meant. One citation will show that. 

"In cases of conspiracy or meditated treason against the King, it 
is not unusual to vest a power in the King of apprehending and 
detaining suspected persons, without bail or main prize, which, as 
to them, operates as a suspension of the Habeas Corpus Act." — 
Jacob's Law, Diet. Title Government. And that, too, was Mr. 
Madison's opinion as to the suspension of the privilege under our 
Constitution. — Rep. on Virg. Res. 

But either the Act has been suspended, or the privilege has been 
suspended. The dilemma is unavoidable. Thus the suspending acts 
must have done one of four things, as it respected the persons to 
whom it Avas meant to apply them, viz : 1. To repeal the Habeas 
Corpus Act; or, 2d, to suspend the Act; or, 3d, to suspend i\i& 



29 

Writ; or, 4tli, to suspend i\\Q privilege of, or right to, the Writ or 
Act. Those who say that they did not even suspend the Act, can- 
not say that they repealed it as to any body ; nor, as they insist, 
did they suspend it ; and, for a still stronger reason, they did 
not suspend the Writ; it follows, therefore, that it must have been 
the p>rivilege itself which they suspended. No matter that the acts 
did not use the word p)rivilege ; they did in legal intendment and 
effect declare, that certain persons should not, for a limited time, 
have a right to apply for the Writ of Habeas Corpus, and when 
the Courts refused them the Writ, they did such persons no wrong; 
for that there cannot be any wrong, denial, or delay, when there is 
no right, is a maxim both of the civil and common law. 

What has thus been said, may now be applied in answer to the 
main positions in favor of the President's suspending power; and 
the first is, that the privilege mentioned in the clause is the pri- 
vilege of an impr'isoned or detained person, of being bailed, kc, 
&c. That " the warrant of arrest with the order that the party's 
privilege be denied for a season, is suspension.'' That "the 
power to imprison and to deny or delay a discharge from im- 
prisonment, is an Executive power ; therefore the suspension 
is an Executive poAv^r. Is it, however, true that there is no pri- 
vilege in the Constitutional sense of the word, before a person 
has been arrested? When, in 1692, the people of Massachusetts 
passed a Habeas Corpus Act, and the King refused to approve it, 
because, as he said, "the privilege had not been granted to the 
plantations," did he mean to say that that privilege did not exist 
because they had not all been arrested? If the status of im- 
prisonment be essential to the existence of the privilege of the 
AVrit, it was very fortunate for the people of Massachusetts that 
the King had not granted to them that privilege. When the 
people of England have, from age to age, clamored for their privi- 
leges, and that they should be secured to them by charter upon 
charter, did they ever suppose that their own imprisonment was an 
element, and an essential one, of their chartered privileges ? Have 
not the people the privilege of trial by jury without being in Court 
as parties, plaintiff, or defendant? Surely, the privilege of, or 
right to, a thing, is essentially different from the enjoyment of that 
right. That a man cannot exercise his privilege of, or right to 



30 

demand, the "Writ of Habeas Corpus, till be bas been imprisoned, 
is true ; but the imprisonment is not the privilege, or any element 
of it, it but gives occasion for the exercise of it. The privilege 
does not then ^'■subsist in remedy.'" But it is further objected, 
that "it is impossible to suppose that, in speaking of suspending 
the privilege of the Writ, it (the Constitution) meant by one act 
of law, as if it had spoken of the Writ alone, or of the Habeas 
Corpus Act." That s'entence was penned by a gentleman who 
then overlooked the fact, that the Constitution of Massachu- 
setts, made seven years b«fore that of the United States, contained 
precisely the same clause. That it did mean just what that writer 
says it was impossible it could mean, viz: that the privilege 
should be suspended by one act of laiv ; and he overlooked the 
further fact, that instead of it being impossible to suspend the 
privilege by 07ie act of law, that impossibility had actually been 
performed by the Legislature of Massachusetts one year before 
the Constitution of the United States was made ; and that that im- 
possible act, was Avell known to every member of the Federal 
Convention. 

Besides, to affirm that the power to deny the privilege is an 
Executive power begs the question ; and that it is not an Executive 
function is thus proved. If the Constitution had declared that " the 
privilege of the Writ of Habeas Corpus may be suspended at an?/ 
tiyne" the power must have been exercised by the same department 
which ought now to exercise it ; for the present limitation of time 
does but limit the poiver without changing the organ of that power. 
But that absolute power to suspend the privilege would have been 
but a parliamentary power, and the case would then have been 
analogous to, and even identical Avith, parliamentary law; and as 
such a power had always been in the Legislature of England, and 
in the Legislatures of the respective States and not in their respective 
Executives, so it would have belonged to the Legislature of the 
United States, and not to their Executive by virtue of his office. 
Now the words in the existing clause only require the same organ 
to limit its power to specified occasions, instead of exercising it on 
any occasion ; so that the limited power remains with the organ of 
the greater power, viz., with the Legislature ; therefore the power 
to deny the privilege does not belong to the Executive by virtue 



31 

of his office. Again, an arrest (according to law) is an Executive 
act, and generally does, and always can happen without an order 
to suspend the privilege of the party arrested ; if then, by the one 
act of the Executive the party has been arrested, but without an 
order denying his privilege, the latter has not been suspended ; but 
can it not afterwards (and during his detention) be suspended? 
To deny that would be absurd ; but that subsequent act of denial 
cannot be the act of arrest or any part of it, hence the order of 
denial alone must be the act of suspension, which, therefore, is not 
the warrant of arrest unth the order, &c, ; and as the act which thus 
suspends the privilege has no connection with the act of arrest, it 
is not essential that it should proceed from the same actor, and as 
"a single order (of the legislature,) founded on the authority of the 
Constitution," would be as eifective a suspension as a single order 
(of the President,) founded on the same authority, therefore, an 
act of the Legislature, viz., a legislative order, "is all that is neces- 
sary to suspend the privilege," and consequently, it "e's suspension 
under the Constitution." 

III. It has been insisted also, — 1, That " all the conditions 
of the exercise of the power described in the Habeas Corpus clause, 
are of Executive cognizance; that is to say, rebellion or invasion and 
the requirement of the 2nd>lic safety in the times of either," and 
2, That the power to suspend the privilege of the Writ "is insepa- 
rably connected with rebellion or invasion." 

" It is the duty of the office, in both its civil and military aspects, 
to suppress insurrections and repel invasions." " That no legisla- 
tive act is necessary or proper to give cognizance of these facts 
to the Executive department;" that, unlike Parliament, which is the 
highest power in England and gives the authority, our Constitution 
is higher than Congress, and " is itself the authority, and all that 
remains is to execute it." The answers to these are — 1, one, 
and the most essential, of the conditions, viz., ("when the public 
safety may require it,") is not of Executive, but is of Legislative 
cognizance. — 2, that to suspend the right of a citizen is not the 
duty of the Executive in its civil or its military aspect. 

When, in 1777, a bill was introduced into the English Parliament 
to suspend the privilege of the Writ of Habeas Corpus as to 
Americans engaged, or suspected of being engaged, in the rebellion. 



32 

Mr. Fox and his friends opposed the bill, and " they succeeded in 
modifying some of its most arbitrary features." — McKnight's Life 
of Burke ; vol. 2, p. 164. Is it of less consequence to American 
citizens, that tliey should have the like protection ? Or that their 
immediate representatives shall have the right to judge whether 
the public safety does actually require the suspension of their 
privilege ? or at least to modify the proceeding as was done in 
England ? 

E-ebellion and invasion are great physical facts, which all can 
see, and about which there can be but one judgment. These the 
Executive may readily know, but the Constitution does not au- 
thorize the privilege of the Habeas Corpus to be suspended upon 
either rebellion or invasion. Granting that they exist, neverthe- 
less the Constitution expressly declares that " The privilege shall 
not be suspended unless when the public safety may require it." 
Is it true, then, that no Legislative act is necessary or proper to give 
cognizance of that fact to the Executive ? There is not, among 
the innumerable subjects of Legislative cognizance, one so essentially 
of that class as the requirement of jnihlic safety. What it may or 
may not require depends on expediency and sound public policy ; 
and the requirement itself is essentially the judgment which the 
competent authority shall pronounce on the field of events, which 
does in their judgment influence the safety of the public. Let there 
be rebellion or invasion, but what new rules of conduct shall be 
prescribed on their account ? If new laws be required. Congress 
alone can make them. If property is to be taken. Congress alone 
can take it. Shall then the privilege of privileges — shall liberty itself 
be subjected to a department, incapable of making any law, or of 
prescribing a rule of conduct for anybody ? Laws are but means 
to guard the liberty of the citizen, and to the Legislature alone 
have the people intrusted the power of making and modifying 
the laws ; have they then given to the Executive power to take 
away liberty itself ? — the very end for which the law was made. 

Granted that the public safety may require its suspension, shall 
the President only, or shall Congress, say how long that safety re- 
quires it, and when it shall cease ? or which of them shall say in 
what places, or upon what persons, or on what conditions only, the 
suspension shall operate ? If it shall be notorious that warrants of 



33 

arrest have been left in blank, with power in corrupt and arbi- 
trary Secretaries to fill them up, as they shall find a victim, shall 
the President be permitted to depute that discretionary power to 
such ofiicers, to be exercised when, where, and upon whom they 
shall think fit ? It may be replied that this might follow even if 
the Legislature had suspended the privilege, for then the imprison- 
ment would still be the sole act of the President. But the answers 
are : 1. Power held under the will of another is never so much 
abused, and can never be so dangerous as when it is not so held ; 
hence, the President and his dependents would be less likely to abuse 
it when held by the sufferance of Congress only, than if it were 
held under the Constitution, and above Congress. 2. A power 
given by Congress could be given upon terms, in case of abuse they 
could require an account of it, its rightful possessors could call the 
public attention to its abuse, it would, in short, have every check 
and safeguard which are possible to be given to it ; but if the Con- 
stitution has given the power to the Executive, the Congress can- 
not require an account of its use, or take it away in case of its 
abuse. They themselves may be among its victims. 

But does it belong to his ofiice in its civil aspect ? Plamilton 
has said that " the essence of legislative authority is to enact laws, 
or in other words, to prescribe rules for the regulation of the so- 
ciety ; while the execution of the laws, and the employment of the 
common strength, either for this purpose, or for the common de- 
fense, seems to comprise all the functions of the Executive Magis- 
trate. — " Fed. No. 75. And Mr. Madison said : — Report on Virg. 
Res. — " It has become an axiom in the science of government, that 
a separation of the legislative and executive departments, is neces- 
sary to the preservation of public liberty. Nowhere has this axiom 
been better understood in theory, or more carefully pursued in 
practice, than in the United States." 

The duty, then, of the Executive ofiice is to take care that the laws 
shall be executed, and that presupposes the existence of the laws 
to be executed. But those laws bind the President as well as any 
private citizen; they say to him — The law allows, nay, enjoins upon 
you, to arrest whosoever shall violate the law, but it next enjoins 
the Judge to hear that accusation, and to decide between the Exe- 
cutive and the accused, and to bail, remand, or try him accord- 
c 



34 

ing to law ; so that if, by tlie laws of the land, lie has deserved 
to be punished, " then by the same laws also he may, and by no 
other he ought, to be judged, and acquitted, or condemned." If 
then " the warrant of arrest, with the order that the party's privi- 
lege be denied for a season, is suspension," what is that order but 
a laiv, and the power to make it, but power to make a law ? The 
law had given the privilege, this order takes it away ; the law had 
said the prisoner ought to be heard, and bailed, released, or tried 
by a Judge ; this order prohibits the Judge from bailing, or releas- 
ing, or trying ; even the prisoner himself need not be informed of 
the accusation against him. What is this but to make a law abro- 
gating, for a season, all laws, which, from Magna Charta to the 
Constitution, have solemnly declared that " no freeman shall be 
taken, or imprisoned, or passed upon but by the law of the land " 
— that is by judicial proceedings ? The President considers, in his 
own mind, what the public safety requires, and, thereupon, he 
legislates — he Avills the law for each prisoner. In the language 
of Mr. Jefferson, he is " himself the accuser, counsel, judge and 
jury ; whose suspicion may be the evidence, his order the sentence, 
his officer the jailor, and his breast the sole record of the trans- 
action." It is incredible that such is the duty of the office in its 
civil aspect. 

3. Is it so in its military aspect ? " Congress (not the President) 
shall have power to declare war, raise and support armies, ta pro- 
vide for calling forth the militia to execute the laws of the Union, 
suppress insurrection, and repel invasion." — Const. Art 1, sec. 8. 

Be it remembered that this power is claimed to have been given 
to the President alone. If that, or any other power within the 
Constitutional grant be necessary in case of rebellion or invasion, 
Congress will judge of the requirements of the public safety, and 
upon their own motion, or on demand of the Executive, may give 
him the power of the whole government. The Legislature is here, 
and in all free governments, the organ of the national will. The 
Executive but enforces that will. He upholds and enforces the 
rights of the people, he cannot suspend or take their rights away. 
If the law has been violated, then by, and according to, the same 
law, he takes care that the violators are arrested ; there his duty 
ceases ; for the Judges alone, who are equal in authority with him- 



35 

self, can pass upon or judge the alleged violator of it ; but if the 
President himself passes upon him, or withholds him from their 
judgment, he then becomes the violator of the law, he usurps the 
functions of the Judiciary, and he is not in the performance of his 
office. 

This becomes evident from a view of the whole spirit, and even 
the letter, of the Federal, and the several State Constitutions. 

To suspend the privilege of the "Writ of Habeas Corpus, is to 
suspend the laws and the execution of the laws ; and as that power 
is by express words in some, and by the fair intendment and effect 
of all the State Constitutions, prohibited to the Executive, and when 
suffered at all, is confined to the Legislature, both by the Constitu- 
tions made before as well as since that of the United States, it is the 
highest evidence, that the same people did not mean to give, and 
that in their opinion they did not give, that power to the Federal Ex- 
ecutive, but limited it to the Legislature. 1. It suspends the laws, it 
suspends the right itself. It suspends every law from and since 
Magna Charta, which secures the right. It suspends the Bill of Rights 
in every State which has such a bill, and few are without one. It 
suspends that part of the Constitution of every State made before as 
well as since the Federal Constitution, which ordains, and they all 
ordain, that the privilege of the Writ of Habeas Corpus shall not 
be suspended, save by the Legislature. 

By section 12 of the Bill of Rights in the Constitution of Penn- 
sylvania, it is ordained that '•'■ No power of suspending laiv shall be 
exercised, unless by the Legislature or its authority." The like 
provision, with the addition, generally, that the execution of the 
laws shall not be suspended, was ordained before the adoption of 
the Constitution of the United States, in the Bills of Rights or Con- 
stitutions of Massachusetts, New York, Virginia, North Carolina, 
Maryland ; and since that time in the Bills of Rights or Consti- 
tution of New Hampshire, Vermont, Connecticut, New Jersey, 
Georgia, Kentucky, Rhode Island, Tennessee, Ohio, Indiana, Mis- 
sissippi, Maine, and Alabama, and it may be in others ; and in not 
a single instance is that power given, even by implication, to the 
Executive. 

But it suspends the execution of the laws ; a thing as much for- 
bidden by the intent, and as often by the words of those Bills of 



36 

Eights and Constitutions, as that of suspending the laws themselves. 
The power which suspends the privilege, does in effect suspend the 
execution of every law which enjoins judges to issue, and officers to 
execute, the Writ of Habeas Corpus. From the moment that the 
executive fiat goes forth, the arm of the Judiciary is arrested, and 
those laws can no longer be executed. 

In still further evidence that the power of suspension was not 
meant to be taken from the Legislature and given to the Presi- 
dent, it appears that in every State Constitution in which the 
Habeas Corpus is mentioned, (and it is mentioned in perhaps every 
one of them, in terms like, or identical with, that of the United 
States,) the power is conferred only upon the Legislature ; in no 
instance is it given to the Executive ; and in the amended Consti- 
tution of Virginia it is taken from both. 

In the Federal Convention, on June 4th, Mr. Gerry moved that 
" the National Executive shall have a right to negative any legis- 
lative act which shall not be afterwards passed, unless by parts 

of each branch," &c. It was moved to amend so as to read, 
'' Resolved that the National Executive have a power to suspend 
any legislative act for — ," and the amendment was unani- 
mously negatived. That was the only attempt ever made in the 
Federal Convention to give to the Executive a suspending power. 

The jJosition of the Clause. — It has been said that "the present 
position of the clause in the Constitution is not of the least conse- 
quence ; according to the Journal of the Convention, the clause 
was offered as an amendment to the fourth section of the article on 
the Judiciary. If position in a section of an article carries power 
to the article, then the original motion as adopted carried power 
to the Judiciary, and must have regarded suspension of the privi- 
lege as a judicial act, and not as dependant on a legislative act." 
It is submitted that that is a 7io7i sequitur. 

X. A reference to the history hereinbefore given of the Judiciary 
clause which is now clause 3, Sec. II., Art. III. ; will show that it 
limited the ^jlace where trials in criminal cases should be had to 
the State in which they should be committed — that was a limitation 
upon the power of Congress, without which they might have enacted 
that the trial should be elsewhere ; and the latter sentence of the 
section, viz., " as to crimes not committed within any State, the trial 



37 

shall be at such place or places as Congress may by law have di- 
rected," is also restrictive, because it prohibits a trial at any place 
other than where Congress shall have directed, viz., before the 
commission of the specific offence ; so that the whole subject of the 
section was a restriction upon the power of Congress, and when Mr. 
Morris offered the Habeas Corpus clause as an amendment to it, 
it shows, when read in connection with it, that it also, was (for 
greater caution) a limitation upon the power of Congress. 

It has been further objected: "In oppositioji to an intention to 
leave the power to Congress, observe the striking departure from 
parallel of the second clause of Section 9, Article I., from i\).Q first 
clause of the same section : 

'■'■First Clause. — ' The migration or importation of such persons, 
&c., shall not be prohibited by Congress before the year 1808, but a 
tax or duty (expressly within the power of Congress, section 8) 
may be imposed on such importation.' 

'■^Second Clause. — ' The privilege of the Writ, &c., shall not be 
suspended, unless when, &c., the public safety may require it,' 
and the word 'Legislature' dropped from Mr. Pinckney's clause." 

The answer to " the departure from parallel" is this : — Had the 
word "Congress" been omitted from the first clause, so as to read 
"the importation, &c., shall not be prohibited," &c., that might have 
been construed as prohibiting not only Congress but the States 
from abolishing the slave trade before the year 1808, but the in- 
sertion of the word " Congress," prohibited them only, and thus " in 
the interim all the States were at liberty to prohibit it." — Mass. 
Debates, p. 117. And the limitation on taxing was inserted, lest a 
prohibitory tax should be imposed by Congress, (see Virg. Deb., 
p. 322—324,) so the parallel is not departed from. 

Passing from the Convention which prepared, to the State Con- 
ventions which ratified and made it, what was their opinion of the 
clause ? 

So soon as the Federal Constitution had been framed, it was 
submitted to Conventions of the respective States. The members 
of those Conventions were generally the ablest in the States, and 
among them were the chief men who had themselves framed the 
Constitution, and who, of course, knew what its several clauses 
meant. 



38 

In the New York Convention there were, among others, Hamilton, 
Jay, Morris, and the Livingstons. In that of Massachusetts, were 
Adams, Hancock, Gushing, and Gorham. In that of Virginia, 
were Madison, Mason, Randolph, and Henry. It has been ob- 
served, that in the Federal Convention, this Habeas Corpus clause 
was adopted with very little debate. That is true, also, of the 
State Conventions ; for example, in that of New York, it is recorded 
that " the Committee (of the Whole) then proceeded through sec- 
tions 8, nine, and 10, with little or no debate. The fact is most 
significant, but of tvJiat? It could not be that the subject was of 
little importance, for the people of this country, as well as those of 
England, had ever considered it of the greatest importance. 

The Constitution was adopted in Federal Convention in Sept., 
1787, it was first ratified by Delaware, in Dec, 1787, and, lastly, 
by Rhode Island, in May, 1790. The second State that ratified 
it was New York, in July, 1788. During that period the press 
teemed with letters, essays, and addresses, for and against it. 
Every material objection to it was taken up and discussed by 
Madison, Hamilton, and Jay, in a series of papers, which, together, 
are now known as The Federalist. Yet, in them, this clause is 
mentioned but twice, and by Hamilton, who, in one, says, the 
Writ is amply confirmed; and, in the other, (No. 84,) he argues 
that it is secured by the Constitution as well as by a Bill of Rights. 
That " the practice of arbitrary imprisonment has been, in all 
ages, the favorite and most formidable instrument of tyranny," 
and then cites from Blackstone (vol. 1, p. 136) the passage that 
such imprisonment is more dangerous to liberty than violently to 
take property or life ; but not a word is said about having taken 
this power from the Legislature. It is true, then, that for some 
reason, there was very little objection to this clause, and it is cer- 
tain that there was no objection to it on the ground that the power 
of suspending the privilege was to be exercised by a department of 
the Government which should not exercise it. Nay, more, as to 
which of the departments had it, there seems to have been a uni- 
versal concurrence of opinion. 

So objectionable were some parts of the Constitution to the more 
Democratic part of the members, that some of them either left the 
Convention itself, or refused to sign it, and afterwards did all they 



39 

could, both in the State Conventions and elsewhere, to prevent its 
ratification; among these may, especially, be mentioned, Luther 
Martin, of Maryland ; Yates and Lansing, of New York ; Mason 
and Edmund Randolph, of Virginia, and Gerry, of Massachusetts. 

In the State Conventions, the chief objections to it were that 
it consolidated all the powers of the States and people in the 
Federal Government ; that their rights were at its mercy ; that it 
contained no Bill of Rights; that trial by jury, freedom of speech, 
freedom from arrest, unless upon a warrant supported by oath, 
and the prohibition of excessive bail, were not sufficiently provided 
for ; and, indeed, the Constitution was only ratified upon the well 
understood assurance that these things should all be, as they were 
immediately afterwards, secured by amendments. There were 
other objections, too, some of them real, many of them chimerical. 
Patrick Henry, above all others, was persistent in his objection to 
it, on the ground that it did not sufficiently fence in and guard the 
liberty of the people. Was there then no objection to this clause? 
The answer is, there were two objections. It was objected, 1st. 
That the privilege ought not to be suspended for any time, or 
at all. 2d. That, at least, the time of the suspension ought to 
have been limited, as it was in the Constitution of Massachusetts, 
whence it was borrowed; but, it was universally/ agreed, that Con- 
gress alone had the power to suspend the privilege ; and those 
objections were to entrusting that power even to Congress. It 
was this universal understanding and supreme consciousness of the 
fact, that Congress alone had the power to suspend, which accounts 
for the fact, that neither in the Federal or in any of the State 
Conventions, was there a question raised as to which department 
of the Government had the power ; and that will now be made 
evident by the express and recorded resolution of one Convention, 
and by the declaration of every member of each Convention, who 
spoke either for or against the clause itself. 

In the New York Convention, on July 2, towards the close of 
the proceedings, it is recorded in 1 Ell. Deb., p. 350, that "The 
Committee (of the Whole) then proceeded through sections 8, nine, 
(that in question,) and 10, of this article, (first,) and the whole of 
the next, with little or no debate. As the Secretary read the 
paragraphs, amendments were made in the order and form here- 



40; 

after recited. In tlie paragraph, " Sec. 9. Respecting the privi- 
lege of the Habeas Corpus," Mr. Tredwell moved this amendment : 
'■'■ Resolved, That whenever the privilege of Habeas Corpus shall 
be suspended, such suspension shall, in no case, exceed the term 
of six months, or until the next meeting of the Congress." Thus, 
assuming that Congress passed the Act at one session, it sought to 
limit the time, for which thej should suspend it, to six months, or 
till their next session. The New York Convention adopted the 
Constitution ; but they prefaced that adoption by a Declaration of 
Rights, which they declared "cannot be abridged or violated," 
and "are consistent with the said Constitution;" and one of them 
is in these words — "That every person restrained of his liberty 
is entitled to an inquiry into the lawfulness of such restraint, and 
to a removal thereof if unlawful; and that such inquiry and re- 
moval ought not to be denied or delayed, except when, on account 
of public danger, the Congress shall suspend the privilege of the 
Writ of Habeas Corpus." 

Then followed certain amendments which they had confidence 
would be — and which they enjoined their Representatives to exert 
themselves to have — adopted; one of which is in these words, 
" That the privilege of the Habeas Corpus shall not be suspended 
for a longer term than six months, or until twenty days after the 
meeting of the Congress next following the passing the Act for 
such suspension." 

These resolves set the whole question at rest. They express the 
opinion of Hamilton, Jay, Livingston, Morris, Clinton, and others. 
They have distinctly declared, in reference to the very clause in 
question, that it is the Congress which has the power to suspend 
the privilege; and the question now is, were they, who made the 
Constitution, mistaken, or are those who difi'er from them mis- 
taken ? 

To these will now be added the recorded opinions of the makers 
of the Constitution (and of those who ratified it) in the Conventions 
of the several States. In reply to a congratulatory address, Mr. 
Jefierson said: "The Constitution shall be administered by me 
according to the safe and honest meaning contemplated by the 
plain understanding of the people at the time of its adoption; a 
meaning to be found in the explanations of those who advocated, 



41 

not those wlio opposed it. Tliese explanations are presented in 
the publications of the times." And the same sources of explana- 
tion are referred to in Mr. Madison's letter to Mr. C. J. Ingersoll, 
Feb. 22, 1831—4 Elliott's Debates, pp. 414, 446. It was Mr. 
Tredwell who, in the New York Convention, moved the amend- 
ment limiting the time of the suspension. He objected to any 
suspension, but thought that at least its duration should be limited. 
He, also, objected to the terms of the clause, which seemed to con- 
cede a prior power in the General Government, of which it was 
but the limitation. On these points he said, (2 Elliott's Debates, 
p. 399,) " Why is it said that the privilege of the Writ of Habeas 
Corpus shall not be suspended unless, in cases of rebellion or inva- 
sion, the public safety requires it ? What clause in the Constitu- 
tion, except this very clause itself, gives the Greneral Government 
a power to deprive us of that great privilege, so sacredly secured 
to us by our State Constitution? Why is it provided that no bill 
of attainder shall be passed, or that no title of nobility shall be 
granted ? Are there any clauses in the Constitution extending the 
powers of the General Government to these objects? Some gen- 
tlemen say that these, though not necessary, were inserted for 
greater caution." That is to say, those who defended this Habeas 
Corpus clause, among others, had justified its insertion, not for the 
purpose of giving a power, but for greater caution to restrain a 
power which otherwise might be exercised by the General Govern- 
ment, certainly not by the Executive. No matter, however, about 
that point ; it is clear that Mr. Tredwell, and all who heard him, 
never questioned but that the power, with or without the clause, 
belonged to Congress only. 

Luther Martin, a delegate from Maryland to the Federal Con- 
vention, opposed the ratification of the Constitution on the grounds, 
among others, that it gave too much power to the General Govern- 
ment, did not sufiiciently secure the civil rights of the people, and 
that it did not prohibit the slave trade. In his address to the 
Legislature of Maryland, detailing the grounds of his objections, 
he says : 

" By the next paragraph, the Greneral Gfovernment have a power 
of suspending the Habeas Corpus Act i:i cases of rebellion or inva- 
sion. 



42 

" As the State Governments have a power of suspending the Ha- 
beas Corpus Act in those cases, it was said [in the Federal Con- 
vention] there could be no reason for giving such a power to the 
General Government, since, whenever the State which is invaded, 
or in which an insurrection takes place, finds its safety requires it, 
it will make use of that power. And it was urged that if you give 
this power to the General Government, it would be an engine of 
oppression in its hands ; since whenever a State should oppose its 
views, however arbitrary and unconstitutional, and refuse submis- 
sion to them, the General Government may declare it to be an act 
of rebellion, and, suspending the Habeas Corpus Act, may seize 
upon the persons of those advocates of freedom who have had 
virtue and resolution enough to excite the opposition, and may 
imprison them during its pleasure, in the remotest part of the 
Union ; so that a citizen of Georgia might be hastiled in the farthest 
part of New Hampshire, or a citizen of New Hampshire in the 
farthest extreme of the South, cut off from their family, their 
friends, and their every connection. These considerations induced 
me, sir, to give my negative to this clause, also." 

Mr. Martin's objection was to any suspension — even by Congress. 
It had not entered into his imagination that the Executive could 
claim, or that others would claim for him, this objectionable power. 

In the 3Iassachusetts Convention, the Constitution was debated 
between January 9th and February 6th, 1788. On January 26th, 
the Journal of the debates records that — 

" The paragraph which provides that the privilege of the Writ 
of Habeas Corpus shall not be suspended unless in cases of rebel- 
lion or invasion," was read, when General Thompson asked the 
President to please to proceed. "We have," said he, "read the 
book often enough; it is a consistent piece of inconsistency." 

Hon. Samuel Adams, in answer to an inquiry of the Hon. Mr. 
Taylor, said : " That this power given to the Creneral Grovernment 
to suspend this privilege in cases of rebellion and invasion, did not 
take away the power of the several States," &c. 

Dr. Taylor asked, why this darling privilege was not expressed 
in the same manner it was in the Constitution of Massachusetts ? 
Here he read the latter, and remarked on the difference of expres- 
sion, and asked, why the time was not limited ? 



43 

Judge Dana said, " The answer, in part, to the honorable gen- 
tleman must be, that the same men did not make both Constitu- 
tions ; that he did not see the necessity or great benefit of limiting 
the time," Supposing it had been, as in our Constitution, "not 
exceeding twelve months," yet, as our Legislature can, so might 
the Congress, continue the suspension of the Writ from time to 
time, or from year to year. The safest and best restriction, there- 
fore, arises from the nature of the cases in which Congress are 
authorized to exercise that power at all, namely, in those of rebel- 
lion or invasion. These are clear and certain terms, facts of pub- 
lic notoriety, and whenever these shall cease to exist, the suspen- 
sion of the Writ must necessarily cease, also. He thought the 
citizen had a better security for his privilege of the Writ of Habeas 
Corpus under the Federal than under the State Constitution, for 
our Legislature may suspend the Writ as often as they judge " the 
most urgent and pressing occasions" call for it. He hoped these 
short observations would satisfy the honorable gentleman's inqui- 
ries, otherwise, he should be happy in endeavoring to do it by 
going more at large into the subject. 

Judge Sumner said, that this was a restriction on Congress, that 
the Writ of Habeas Corpus should not be suspended except in 
cases of rebellion or invasion. The learned Judge then explained 
the nature of this Writ. 

This privilege, he said, is essential to freedom, and, therefore, 
the power to suspend it is restricted. On the other hand, the 
State, he said, might be involved in danger ; the worst enemy may 
lay plans to destroy us, and so artfully as to prevent any evidence 
against him, and might ruin the country without the power to sus- 
pend the Writ Avas thus given. Congress have only power to sus 
pend the privilege to persons committed by their authority. A 
person committed under the authority of the States will still have 
a right to this Writ. 

After the several articles had each been debated, there was a 
discussion upon them generally, when Mr. Nason said — 

" The paragraph that gives Congress power to suspend the Writ 
of Habeas Corpus claims a little attention. This is a great bul- 
wark — a great privilege, indeed. We ought not, therefore, to give 
it up on any slight pretence. Let us see : how long is it to be 



44 

suspended? As long as rebellion or invasion shall continue. This 
is exceeding loose. Why is not the time limited, as is in our 
Constitution ? But, sir, its design would then be defeated. It 
was the intent, and by it we shall give up one of our greatest 
privileges," 

I71 the Virginia Convention. — It would be tedious to cite all the 
passages which assert the power of Congress alone to suspend 
this privilege. Neither those in favor of, nor those opposed to, the 
Constitution in a single instance attributed that power to the Pre- 
sident. Two passages only will be quoted. Mr. Nicholas, who 
supported the Constitution, said — " But it is complained that they 
(the Congress) may suspend our laws. The suspension of the Writ 
of Habeas Corpus is only to take place in cases of rebellion or in- 
vasion. This is necessary in these cases, in every other case Con- 
gress is restrained from suspending it. In no other case can tliey 
suspend our laws, and this is a most estimable security. — Virg. 
Deb., 81. 

Mr. Grayson opposed the Constitution ; he said — " The second 
clause, ninth section, of the first article provided, that the privilege 
of the Writ, &c. Now, if this restriction had not been here in- 
serted, AYOuld not Congress have had a right to suspend that great 
and valuable right ?" — lb. p. 319, 330, 407 ; see also pages 50, 81, 
179, 827. 

In 1807, on the occasion of Burr's conspiracy, the Senate of the 
United States passed a bill to suspend for three months the privi- 
lege of the Writ of Habeas Corpus. Among the Senators then 
present were George Clinton, Timothy Pickering, James A. Bayard, 
Samuel Smith, William B. Giles, and John Quincy Adams ; the 
latter three brought in the bill. 

In the House were John Randolph, Josiah Quincy, Nathaniel 
Macon, Livingston, Theodore D wight, Pitkin, Dana, and others, 
eminent for their learning. The bill was objected to on the grounds 
that it was bad in principle, dangerous as a precedent, and would 
be abused in practice if imprisonment at will were intrusted to 
even the best of Presidents. It was argued that it suspended the 
personal rights of the citizen, it would place them under a military 
despotism, it dispensed with the operation of the laws, and that the 



45 

public safety did not require it — and 113 voted against, and only 
19 for it. 

That was instantly followed by a bill to further secure the pri- 
vilege to persons in custody, under the authority of the United 
States. Its mover, James M. Broome, of Delaware, said, " In ordi- 
nary times there was no temptation to transgress the limits of con- 
stitutional law ; but in times of turbulence, the formal recognition 
of rights would be a feeble barrier against the inflamed passions of 
men in power, whether excited by an intemperate zeal for the sup- 
posed welfare of the country, or by the detestable motives of party 
rancor or individual oppression." The debates are full of the like 
sentiments. The bill was postponed by a vote of 68 to 50 ; but 
in the debates on both bills it was unanimously agreed that Con- 
gress alone could suspend the privilege ; indeed no man questioned 
that. See 3 Benton, Ab. Deb., p. 490-542. 

Of Judicial Authority. — Marshall, Ch. J., said, in 1807, in 
ex parte Bollman, 4 Cranch Rep. 101 : " If at any time the public 
safety should require the suspension of the powers vested by this 
act in the Courts of the United States, it is for the Legislature to 
say so. That question depends on political considerations on which 
the Legislature is to decide. Until the Legislative will be ex- 
pressed, this court can only see its duty, and must obey the laws." 

Judge Story, Commentaries on the Constitution of the United 
States, vol. 3, p. 209 : " Hitherto no suspension of the Writ has 
ever been authorized by Congress since the establishment of the 
Constitution. It would seem, as the power is given to Congress 
to suspend the Writ of Habeas Corpus in cases of rebellion or in- 
vasion, that the right to judge whether the exigency had arisen, 
must exclusively belong to that body." 

Taney, Ch. J., in ex parte John Merryman : " Merryman was 
arrested by a military officer, without oath or warrant, and without a 
proclamation or order of the President suspending the privilege ; but 
he had delegated that power to the officer to be exercised when he 
should think proper to exercise it. The Chief Justice decided the 
very point, holding it as hitherto unquestioned by anybody, that 
Congress alone could suspend the privilege." 

Woodbury J., in Luther vs. Borden, 7 Howard 80, assumed it 
as undoubted, that Congress alone had this power, and says of the 



46 

arrests in Burr's conspiracy : "And Congress then declined to 
suspend that Writ * * * although the bill provided it should 
he done only when one is charged on oath with treason. Such a 
measure was deemed at best but a species of dictatorship," even 
when done by Congress. 

Of Commeiitators and Text-tvriters. — Rawle on the Constitution, 
p. 114. — " Of this (requirement of public safety) the Constitution 
probably intends that the Legislature of the United States shall 
be the judges, charged as the^ are with the preservation of the 
United States from both those evils, (rebellion and invasion,) and 
it seems not unreasonable that this control over the Writ of Habeas 
Corpus should rest with them." 

"We have seen that there is one law, securing the privilege of 
the Writ of Habeas Corpus, which cannot be suspended even by 
the Legislature, unless in the extreme emergencies of rebellion or 
invasion." — Walker's introduction to American Law, p. 195-6. 

Henry St. George Tucker's Commentaries, 1836, vol. 1, p. 
42. — Congress alone can suspend the privilege of the Writ of Ha- 
beas Corpus. Such an attempt was made during the apprehen- 
sions entertained of Col. Burr's designs, but failed." 

Theodore Sedgwick, in his Commentaries on Statutory and 
Constitutional Law, ( 1857,) p. 598, says : 

"Practically, as yet, Congress has never authorized the suspen- 
sion of the Writ. It is understood that as the unlimited power 
(in cases of rebellion or invasion) is vested in Congress, the right 
to judge of the expediency of the exercise is also vested absolutely 
in that body." 

Smith's Commentaries on Constitutional Laiv ; p. 364. — This 
author considers " the restrictions laid upon the Legislative power 
of the Union, under express prohibitions found in the same instru 
ment ; and among them is that which forbids the Habeas Corpus to 
be suspended." 

The last Commentary on the Constitution is that of George 
Ticknor Curtis, of Boston, in the second volume of whose work, 
published in 1858, he says, — " There now remains to be considered 
the restraints imposed upon the exercise of the power of Congress 
both within the States and in all other places ; some of them relate 
to special powers, "but others are introduced which apply to the 



47 

exercise of all the powers of Congress, and are in the nature of 
limitations upon its general authority as a Government — one of 
these is embraced in the clause that the privilege of the Writ of 
Habeas Corpus shall not be suspended," &c. 

The only comprehensive treatise on the Writ of Habeas Corpus 
published in this country is that by Mr. Rolin C. Hurd, of Ohio ; and 
published in 1858. In that work Mr. Hurd says, " Rebellion and 
invasion are eminently matters of national concern, and charged 
as Congress is, with the duty of preserving the United States from 
both these evils ; it is fit that it should possess the power to make 
effectual such measures as it may deem expedient " to suppress 
them." And he is clearly of opinion that Congress, alone, can 
suspend the privilege of the Writ. — p. 133. 

Of the Judicial Ojnnions. — Chief Justice Marshall had been a 
member of the Virginia Convention, which adopted the Constitu- 
tion. He was intimate with Madison and the other eminent Vir- 
ginia Statesmen, who aided to prepare it. In the State Convention, 
itself, he heard it over and over again asserted, and never denied, 
that Congress alone could suspend the privilege, and he was doubt- 
less perfectly familiar with the history of the clause, itself. 

He was Chief Justice when the alleged accomplices of Burr were 
arrested, and when President Jefferson conceded that he had not 
the power, and when Congress acted under it, but refused to sus- 
pend the privilege. It was at this very time, viz., in 1807, he gave 
his opinion in ex parte Bollman, 4 Cranch. 101. To say that he 
did not understand the meaning of this clause is, to say the least 
of it, highly improbable. Judge Story may have used loose and 
inaccurate expressions, but no man was better informed than he 
was, as to the history of the Constitution, and in it he failed to find 
a spark of evidence that the Executive had this power. 

Of Chief Justice Taney's decision, — the best vindication is that 
the eminent men who prepared the Constitution ; those who in the 
several State Conventions discussed this and its other clauses, and 
who adopted it ; the Judges of the Supreme Court who have since 
considered it; the statesmen who have thence, till 18G1, adminis- 
tered the General Government ; the several Text-writers, Commen- 
tators, and Lawyers who have written upon the Constitution, have 



- - iC I 

48 ^Vljo'-B 

all, ■without a single exception, maintained the position on which 
he based his judgment. 

In conclusion, one topic, though of little weight as an argument, 
may be noticed ; it has been said that the " President has no power 
that can be abused, except with more danger to himself than to the 
community;" and that in Mr, Bulwer Lytton's opinion, ours is "the 
feeblest Executive perhaps ever known in a civilized community." 

Is it not plain that the inference from all that is against the 
President's having the power to suspend the Habeas Corpus ? If his 
power be so limited as to make him " the feeblest Executive ever 
known," who made him so feeble, but the Federal Convention ? 
It was not by accident that such men as were in it kept power 
from him ; it was by design, and in that is seen another evi- 
dence of their intention to withhold from him the prerogative of 
suspending the peoples' privileges. But if they thus well and 
wisely withheld so much powder from him, has not the injiuence of 
his office increased, and is it not increasing ? When in 1690, the 
English Crown was settled upon William III., its powers were 
limited and fixed bylaw; but, substituting the "President" for 
the "Crown," the words of a philosophic Englishman are true of 
the office of the former. "From the time of the Revolution accor- 
dingly we may trace in some measure a new order of things ; a new 
principle of authority, which is worthy the attention of all who 
speculate upon political subjects. Before that period, the friends 
of liberty dreaded only the direct encroachment of the prerogative. 
They have since learned to entertain stronger apprehensions of the 
secret motives of interest Avhich the Executive may hold up to 
individuals, and by which it may seduce them from the duty which 
they owe to the public. To what a height in fact, has this influ- 
ence been raised in all the departments of Government, and how 
extensively has it pervaded all classes and descriptions of the in- 
habitants ? In the Army, in the Navy, through the Custom Houses, 
the Post Offices, the Mints, and through a partizan Newspaper press ; 
together with many other offices connected with the distribution 
of justice, the execution of the laws, and the corps diplomatique. 
With what a powerful charm does it operate in regulating opinions, 
in healing grievances, in stifling clamors, in quieting the noisy 
patriot, in extinguishing the most furious opposition. 

" It is the great opiate which inspires political courage and lulls 
reflection ; which animates the statesman to despise the resentment 
of the people ; which drowns the memory of his former profes- 
sions, and deadens, perhaps, the shame and remorse of pulling 
down the edifice which he had formerly reared." — Millar on Gov., 
vol. 4, p. 94. 

Philadelphia, March 4th, 18G2. 



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